Kiniti (Suing as the Administrator of the Estate of the Late John Guy Kiniti – Deceased) v Munga & 2 others (Civil Appeal (Application) E518 of 2022) [2026] KECA 974 (KLR) (15 May 2026) (Ruling)

Kiniti (Suing as the Administrator of the Estate of the Late John Guy Kiniti – Deceased) v Munga & 2 others (Civil Appeal (Application) E518 of 2022) [2026] KECA 974 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 974 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E518 of 2022 Katwa Kigen, JA May 15, 2026 Between Halima Suleha Kiniti (Suing as the Administrator of the Estate of the Late John Guy Kiniti – Deceased) Applicant and S Estate of Esther Naibartuni Julius ole Marijoi 1st Respondent Paul Senteu Munga 2nd Respondent Land Registrar, Kajiado 3rd Respondent (Being an application for substitution of the appellant and for leave to amend and regularize the record of appeal, arising from the judgment of M.N. Gicheru J. delivered on 30th May 2022 in ELC No. 935 of 2017) Ruling 1.Before me is the Applicant’s Notice of Motion dated 13th February 2026 brought under Rule 102(1) of the Court of Appeal Rules, 2022, Sections 3A and 3B of the Appellate Jurisdiction Act, and all other enabling provisions of the law. The Applicant seeks omnibus orders in her Notice of Motion, but I will confine myself only to those prayers that, as a single Judge of this Court, I have jurisdiction to handle, namely prayers (b), (c), and (d) of the application, which read as follows:b.“That this Honourable Court be pleased to substitute the applicant, Halima Suleha Kiniti (suing as administrator of the Estate of the late John Guy Kiniti) as the appellant in this appeal in place of the late John Guy Kiniti (deceased).”c.“That upon the grant of prayer (b) above, an order be and is hereby issued that the applicant be joined in this litigation as the Appellant in place of the deceased, late John Guy Kiniti.”d.“That upon substitution, the applicant be granted leave to make such filings, amend the record of Appeal and take any necessary steps to effect the substitution on the record, including but not limited to amending the record of Appeal and filings before this Honourable Court.” 2.The application is premised on the grounds set out on the face of the Notice of Motion and those contained in the Supporting Affidavit of Halima Suleha Kiniti, sworn on 13th February 2026. In those affidavits, the Applicant explains that she was duly issued with a Grant of Letters of Administration ad litem on 4th December 2025 in Nairobi High Court Succession Cause No. E919 of 2025, thereby clothed with the requisite legal capacity to represent the estate of the deceased appellant, John Guy Kiniti. She emphasizes that the deceased was the appellant in this matter, having lodged an appeal against the judgment of the Environment and Land Court at Kajiado delivered on 30th May 2022 in ELC No. 935 of 2017. The Applicant therefore urges that substitution is indispensable to ensure continuity of the proceedings, safeguard the estate’s proprietary rights in parcel Kajiado/Ildamat/173, and enable her to take all necessary procedural steps to prosecute the appeal to its logical conclusion. 3.The respondents did not file any reply or written submissions.Hence, although the application is not formally opposed, this Court will proceed to evaluate it on its merits based on the material placed before it. 4.The Applicant filed written submissions dated 27th April 2026 in which she submits, first, that under Rule 102(1) of the Court of Appeal Rules, 2022, an appeal does not abate upon the death of a party and the Court is empowered to substitute the deceased with his or her legal representative. She emphasizes that she obtained a Grant of Letters of Administration ad litem in Nairobi High Court Succession Cause No. E919 of 2025, thereby acquiring the requisite legal capacity to represent the estate of the deceased appellant, John Guy Kiniti. Secondly, on prayer (c), she argues that upon substitution, it is necessary that she be joined in the proceedings as appellant in place of the deceased so as to safeguard the estate’s proprietary rights in parcel Kajiado/Ildamat/173 and to ensure continuity of the appeal. Thirdly, on prayer (d), she submits that leave to amend and regularize the record of appeal is indispensable to reflect the correct party and to enable her to take all procedural steps required for the effective conduct of the appeal. She relies on Sections 3A and 3B of the Appellate Jurisdiction Act, which donate to this Court inherent jurisdiction to fashion orders that facilitate the just, expeditious, and proportionate determination of disputes. The Applicant further invokes the principle that procedural rules are handmaidens of justice, citing Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, to underscore that substitution and consequential orders should be granted to advance substantive justice and avoid undue reliance on technicalities. 5.Having considered the application, the affidavits, and the submissions, the issues for determination are: (i) whether the Applicant has established grounds for substitution under Rule 102(1); and (ii) whether leave to amend and regularize the record of appeal ought to be granted. 6.On substitution, Rule 102(1) of the Court Rules, 2022 expressly provides that“an appeal shall not abate upon the death of a party, and on the application of any interested person, the Court shall cause the legal representative of the deceased to be made a party in place of the deceased.” 7.The rationale is that the right of appeal, once properly invoked, is a vested right which survives the death of a litigant where the cause of action itself is transmissible. This principle has long been recognised in our jurisprudence, for instance, Mungai & 3 Others v Mbugua & Another (Civil Appeal (Application) No. 311 of 2019) [2024] KECA 1752 (KLR):“the Court reaffirmed that an appeal does not abate upon the death of a party and substitution of the deceased with a legal representative is necessary to preserve continuity of proceedings” 8.In the present case, the Applicant has exhibited both the Grant of Letters of Administration ad litem issued on 4th December 2025 in Nairobi High Court Succession Cause No. E919 of 2025, and the Certificate of Death confirming the demise of the appellant on 4th October 2025. These documents establish her legal capacity to represent the estate of the deceased appellant. The cause of action here relates to proprietary rights in land, specifically parcel Kajiado/Ildamat/173, which indisputably survives the deceased and vests in his estate. 9.This Court has consistently emphasized that substitution is not a matter of discretion but a statutory imperative once the legal representative demonstrates capacity. In Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR, the Court observed that substitution is necessary to preserve the appeal and ensure that the estate is not deprived of its right to be heard. Similarly, in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court underscored that procedural rules must serve the ends of justice and not defeat substantive rights. In the context of substitution, the critical legal question is whether the application was made within the statutory timelines. Under Order 24 Rule 3(2) of the Civil Procedure Rules, if no application for substitution is made within one year of the death of a party, the suit abates. This principle was firmly applied in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR, where the Court of Appeal held that failure to move the Court within the one-year period was fatal, and the suit abated automatically. The Court emphasized that substitution is not a mere procedural formality but a substantive requirement to preserve continuity of proceedings. 10.By contrast, Rule 102(1) of the Court of Appeal Rules, 2022 provides a safeguard in appellate practice: an appeal does not abate upon the death of a party, and the Court shall cause the legal representative of the deceased to be made a party in place of the deceased once a proper application is made. The jurisprudence, including Mungai & 3 Others v Mbugua & Another [2024] KECA 1752 (KLR), confirms that substitution at the appellate stage is mandatory once capacity is demonstrated, but it must still be invoked diligently. In the present case, the appellant died on 4th October 2025, and the application for substitution was filed on 13th February 2026. That falls well within the one-year statutory window contemplated under Order 24 Rule 3(2). The Applicant also exhibited a Grant of Letters of Administration ad litem issued on 4th December 2025, thereby establishing her legal capacity to represent the estate. Accordingly, unlike in Said Sweilem, where substitution was sought outside the one-year period, and the suit abated, here the application was made timeously. The Applicant has therefore satisfied both the statutory requirement under Order 24 Rule 3(2) and the appellate safeguard under Rule 102(1). Substitution is legally warranted to preserve the appeal and allow the estate to prosecute the matter to its logical conclusion. 11.On joinder, upon granting substitution, the next logical step is to ensure that the legal representative is properly joined in the proceedings as appellant in place of the deceased. This is not a mere formality but a substantive requirement to preserve the estate’s right of appeal. The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR emphasized that once substitution is effected, the legal representative steps into the shoes of the deceased party and must be formally recognized as such to avoid procedural uncertainty. Further, joinder ensures that the record reflects the correct party and that all subsequent steps in the appeal are taken by a person with proper standing. Without joinder, the estate would be unable to prosecute the appeal, and the proceedings would be rendered defective. The Applicant has demonstrated legal capacity through the Grant of Letters of Administration ad litem, and joinder is therefore warranted to safeguard the estate’s proprietary interests in Kajiado/Ildamat/173. 12.On Leave to Amend and Regularize the Record (Prayer d), the Applicant also seeks leave to amend and regularize the record of appeal. This prayer is anchored in Sections 3A and 3B of the Appellate Jurisdiction Act, which vest the Court with inherent jurisdiction to make orders necessary to facilitate the just, expeditious, and proportionate determination of disputes. The Court has consistently held that procedural rules are handmaidens of justice, not obstacles. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court underscored that discretion should be exercised to advance substantive justice rather than defeat it on technicalities. In the present case, substitution inevitably requires that the record of appeal be amended to reflect the correct party. Without such leave, the record would remain defective, and the estate would be unable to take procedural steps necessary for the effective conduct of the appeal. The Applicant has moved the Court promptly, within four months of the appellant’s demise, thereby demonstrating diligence. No prejudice will be suffered by the respondents, as the orders sought merely ensure continuity of proceedings and do not alter the substantive rights of the parties. 13.In the result, and having considered the application, I am satisfied that the Applicant has demonstrated sufficient cause to warrant the exercise of this Court’s discretion. Accordingly, the Notice of Motion dated 13th February 2026 succeeds to the extent of the prayers within my jurisdiction as a single Judge. I therefore order that the Applicant, Halima Suleha Kiniti, be and is hereby substituted as appellant in place of the late John Guy Kiniti. Consequent upon such substitution, the Applicant is granted leave to amend and regularize the record of appeal so that it properly reflects the correct party, and she is further granted leave to take all necessary procedural steps to effect the substitution on the record, including amendment of the record of appeal and any attendant filings before this Court. The question of costs shall abide the outcome of the appeal. It is so ordered. DATED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF MAY, 2026.KATWA KIGEN K. J.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar